People v. Fondron

• Citation: 157 Cal.App.3d 390,204 Cal.Rptr. 457
• Decision Date: 20 June 1984
• Docket Number: Cr. F1828
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles FONDRON, Defendant and Appellant.

Page 457

204 Cal.Rptr. 457

157 Cal.App.3d 390

The PEOPLE, Plaintiff and Respondent, v. Charles FONDRON, Defendant and Appellant.

Cr. F1828.

Court of Appeal, Fifth District, California.

June 20, 1984.

Hearing Denied Oct. 4, 1984.

[157 Cal.App.3d 392] Quin Denvir, State Public Defender, Charles M. Bonneau, Jr., Deputy Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Gregory W. Baugher and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Acting Presiding Justice.

Appellant Charles Ellis Fondron appeals from his conviction at trial by jury of possession for sale of a controlled substance, phencyclidine (PCP), in violation of Health and Safety Code section 11378.5.

STATEMENT OF FACTS

At approximately 8:50 a.m. on April 7, 1982, Kern County Deputy Sheriff Hackney was dispatched to the 1100 block at East Planz Road in Bakersfield, the location of the Silver Dollar Bar and Grill. When he arrived, Hackney saw appellant Charles Fondron standing out in front of the building in the unlittered, dirt parking lot. Appellant "matched the description that a citizen had called in regarding a complaint." Hackney saw no one other than appellant in the area. He stopped his patrol unit and started to walk toward appellant. When Hackney yelled at him, appellant turned toward him. Appellant made no attempt to run. Hackney conducted a "pat-down" search because he recognized appellant "as the person I knew to be Charles Fondron."

"[A]lmost simultaneously" to Hackney's arrival on the scene, Sergeant Joe Orman, also a Kern County Deputy Sheriff, arrived, proceeding from the opposite direction as Hackney. Orman observed Hackney exit his patrol unit, call out something to appellant, and proceed to walk over and pat down appellant. Orman observed no one in the area other than Hackney and appellant. Orman, who was only 33 feet away, had seen appellant drop a vial from his left hand when Hackney first spoke to appellant from his patrol unit.

As Hackney was patting down appellant's left leg, he saw a small vial about two inches long containing a brown liquid, lying on the ground a few inches from appellant's left foot. Hackney picked up the vial. He noticed it had a strong odor of ether.

Appellant was then searched. Hackney found $135 on appellant's person. The officers learned that appellant was the occupant of 1111 East Planz Road. He explained he was there to open the establishment for the business day.

The vial was examined by Don DeFraga, a criminalist for the Kern County Sheriff's crime lab. He determined it contained a usable amount of phencyclidine, commonly known as PCP, dissolved in ether. An equivalent of one drop of the liquid would be found on a typical hand-rolled PCP cigarette. There are approximately 20 drops to a milliliter. There were eight milliliters of the liquid in the vial. One drop of that PCP liquid was a usable amount.

Bakersfield Police Sergeant Eric Matlock, an expert on PCP for sale, was of the opinion that based on the quantity of liquid PCP involved in this case, it was being held for purposes of resale.

The Defense

Appellant testified that on April 7, 1982, he was the proprietor of the Silver Dollar Bar and Grill; he arrived that day a little after 8 a.m. to open up. He kept the parking lot in front of all the buildings clean and free of debris and litter. When he arrived at his business that morning there were about eight people outside and he spoke to all of them. The road in front of his business is straight and a person can see in three different directions for about a mile. He recalled that when the sheriff's deputies arrived he was alone in the area because the others had all run away. He had observed that the people in front of his business usually run when law enforcement arrives. On this occasion, one of the people in front of his business whom he refused to identify as other than "Killer," threw the vial of PCP on the ground as he ran off. Appellant picked it up. He had no intent to sell it or its contents, or to use the contents; all he intended to do was get rid of it.

Appellant testified that he dropped it on the ground because when the officers pulled in to the lot, one of the officers told him to "hold it," and informed him he was under arrest. Therefore, to avoid trouble, he tried to get rid of it.

Appellant testified that the money he had on him when arrested, approximately $150, was cash register money necessary to conduct business for the day.

Appellant admitted he had been convicted in 1975 of a felony, second degree burglary.

On cross-examination, appellant said he knew the names of the people he claimed had been outside his business but refused to give their names because they were presumably all involved in the drug transactions that take place in that area. Appellant claimed that he saw "Killer" throw the PCP vial down to the ground as he ran off but could not describe the throwing motion.

Rebuttal

Deputy Hackney testified that as he drove down Planz Road, he could see the front of the Silver Dollar Bar from four-tenths of a mile away. He saw only one person standing in the front parking lot. He did not see anyone leaving the area.

When he parked in the parking lot and exited his patrol unit the first words he said to appellant were, "Hey, Partner." He never said, "hey, you're under arrest" out in the parking lot when he first pulled up. He did not say those words until they were inside the building. He had no cause to arrest appellant when he first arrived.

Hackney agreed that in his experience of patrolling the area for eight years, the immediate vicinity of 1111 East Planz usually had several pedestrians standing in front of the businesses. He also said that when police cars came by it was not the general reaction for the people to run away.

DISCUSSION

I. POSTARREST SILENCE.

During cross-examination, the prosecutor asked appellant, "Now, did you tell Deputy Hackney the story that you told the jury, did you tell him that that morning?" Appellant replied, "I didn't say nothin' to him." There was no objection or motion to strike this question or appellant's answer. During the prosecutor's argument to the jury, the prosecutor asserted that it would have been "natural" for appellant to tell the police his side of the story, and that his failure to do so at the time of arrest indicated that his trial testimony was not truthful. At this juncture, defense counsel objected on the basis that the prosecutor's comment was forbidden due to defendant's right to remain silent. The prosecutor replied that he was merely commenting on the state of the evidence. The trial court agreed and overruled the objection. The prosecutor then repeated his line of reasoning for the jury.

It is the contention of appellant that the prosecutor was improperly permitted to argue, over defense objection, that appellant's postarrest silence was a circumstance indicating his guilt. According to appellant, this argument violated appellant's right to due process of law, as set forth in Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

A. Waiver

It is the respondent's position that any objection was waived by defense counsel's failure to object or move to strike when the question was asked of appellant during cross-examination.

The initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.) If it would, the complaint must be rejected; if it would not, the court must address the issue whether, on the whole record, the harm resulted in a miscarriage of justice within the meaning of the Constitution. (Ibid.) While a prosecutor may comment on the state of the evidence (People v. Jackson (1980) 28 Cal.3d 264, 304, 168 Cal.Rptr. 603, 618 P.2d 149), he may not argue the evidence for an improper purpose. (People v. Purvis (1961) 56 Cal.2d 93, 99, 13 Cal.Rptr. 801, 362 P.2d 713, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649, 36 Cal.Rptr. 201, 388 P.2d 33.)

Appellant contends that the prosecutor's question about appellant's explanation, if any, to the arresting officer might have been offered as a means of showing appellant's mental condition at the time of his arrest or for some other purpose; that the use of appellant's silence after arrest as evidence of guilt was not immediately apparent. Therefore, if in fact the argument was impermissible, the objection was not waived by failure to object to the question. The true source of prejudice was the inference drawn by the prosecutor from appellant's silence, i.e., that his testimony was false because he failed to immediately disclose his defense to arresting officers.

The question itself was innocuous at best. It would not alert defense counsel to the danger of subsequent impermissible argument based on appellant's answer. Thus, a timely objection was made at the first opportunity, during the prosecution's argument, and the objection was improperly overruled by the trial court. ¹ No waiver occurred. (People v. Purvis, supra, 56 Cal.2d 93, 99, 13 Cal.Rptr. 801, 362 P.2d 713.)

B. Postarrest Silence Sans Miranda Warnings.

Miranda v. Arizona (1966) 384 U.S. 436, 468, footnote 37, 86 S.Ct. 1602, 1624, footnote 37, 16 L.Ed.2d 694, noted the prosecution may not use at trial the fact that an individual stood mute or claimed his privilege in the face of an accusation. In Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court held that the use for impeachment purposes of a defendant's silence at the time of arrest and after receipt of Miranda warnings violates due process. Doyle v. Ohio has been limited by the United States Supreme Court to situations at or after arrest where a...